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Just the “FAQS” on the “Opportunity to Compete” Act

Effective March 1, 2015, many New Jersey employers will be prohibited from making inquiries into an applicant’s criminal record on employment applications. The following is a brief list of Frequently Asked Questions concerning the new Opportunity to Compete or “Ban the Box” law.

1. Does the law apply to all New Jersey employers? No.

The law only applies to employers with 15 or more employees who conduct business, employ persons or take applications for employment within the State of New Jersey.

2. Does the law prohibit employers from making any inquiry regarding an applicant’s criminal record at any point during the interview process? No.

The law only prohibits employers from making oral or written inquiries regarding an applicant’s criminal record during the initial employment application process, meaning the employment application itself. The law also prohibits employers from posting job advertisements stating that the employer will not consider any applicant who has been arrested or convicted of a crime.

3. What does the “initial application process” mean?

The “initial application process” is when an applicant or the employer makes an inquiry about a prospective employment position, either in writing or by other means. It is important to note that the process concludes when an employer has completed the first interview of the applicant.

4. What if the applicant voluntarily discloses information regarding his or her criminal background during the initial application process?

If that occurs during the interview process, the employer is free to ask questions concerning the criminal record. However, it is imperative that the employer document that the information was obtained as a result of a voluntary disclosure by the applicant.

5. What are the penalties associated with a violation of the new law?

The New Jersey Department of Labor can impose $1,000.00 for the first violation, $5,000.00 for the second violation, and $10,000.00 for each subsequent violation.

6. Do employers need to have a posting in the workplace regarding the new law?

There are no required postings.

7. What other States currently have similar “ban the box” legislation?

At present, 12 other states have embraced bans on criminal background checks during the initial application process including: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Mexico and Rhode Island. There are also a number of cities and counties (including New York City) that have passed similar legislation.

If you have any questions, please feel free to contact Howard A. Matalon, Esq. at 908-964-2424.